On 12 April 2022, the respondent issued an order, which I will call 'the Order', pursuant to s 181D of the Police Act 1990 (NSW), removing the applicant from the New South Wales Police Force. I will refer to the Police Force simply as 'the Force' from here on.
The Order arose from the applicant's failure to abide by a direction made by the respondent in relation to COVID-19 vaccinations. Secondly, the applicant has sought a review of the Order by way of an application made in accordance with s 181E of the Act on the ground that the Order was and is harsh, unreasonable or unjust.
Turning to the background, falling from the evidence, which is uncontroversial.
The applicant was attested as a police officer on 29 August 2008.
On 25 March 2016, he was appointed as a Leading Senior Constable. On 12 April 2021, the applicant sustained an injury to his back and commenced performing restricted duties.
On 7 June 2021 the Delta outbreak of COVID-19 was detected in the community.
On 9 July 2021, the respondent sent an email to all members and employees of the Force, urging them to get vaccinated to help stop the spread of COVID-19.
From August 2021, the number of COVID cases of members of the New South Wales Police Force started to increase, with the appearance of the Delta strain of COVID-19.
The respondent distributed to all members of the Force and employees, advice received from ATAGI, which included those dated as follows:
1. 17 June 2021;
2. 29 June 2021;
3. 13 July 2021;
4. 24 July 2021;
5. 2 August 2021; and
6. 19 August 2021.
The 19 August 2021 ATAGI advice provided the following recommendation, which was consistent with that contained in the earlier advices. I will read from that:
"ATAGI reaffirms previous advice that, in a large outbreak, the benefits of the COVID-19 AstraZeneca, are greater than the risk of rare side-effects for all age groups".
On 2 September 2021, the applicant received a cortisone injection in his spine.
On 5 September 2022 in response to the Delta outbreak, the respondent undertook a risk assessment in relation to mandatory vaccination for COVID-19.
On 7 September 2021, the respondent issued a written direction that all members and employees of the Force are to receive a COVID-19 vaccination in order to perform their duties. The direction required all members and employees of the Force to:
1. have received at least one dose of the COVID-19 vaccination by 30 September 2021;
2. at least two doses of COVID-19 vaccination by 30 November 2021; or
3. to present a valid medical contraindication certificate or apply for and receive a special exemption, based on special circumstances.
The written direction was accompanied by a video from the then Deputy Commissioner, Karen Webb, explaining the direction which was in the following terms:
"Given the current circumstances, all New South Wales Force members will now be required to be vaccinated for COVID-19".
On 23 September 2021 through to 9 October 2021, the applicant was unable to perform any duties, arising from his back problems.
On 25 September 2021, the respondent, who was then an Assistant Commissioner in a message and a video to all members and employees, which was described as a reminder of the direction of 7 September 2021, stated that by 30 October 2021, all members and employees of the Force were required to:
1. have at least one COVID-19 vaccination and provide evidence of vaccination to the Command for upload into SAP, treated as health information or;
2. provide a medical contraindication certification in the form located at https://www.health.nsw.gov.au/Infectious/covid-19/vaccine/Documents/covid-19-vaccine-contraindication.pdf and it states "Please be aware that this is the only form that will be accepted"; or
3. provide details to your Commander of extenuating circumstances, which you feel warrant consideration by the Assistant Commissioner, Human Resources, for exemption under 3(b) of the 7 September 2021 direction.
It goes on to say:
"If you decline to comply with the Commissioner's direction, you will:
1. Not be permitted to perform duties;
2. Be required to take a form of your leave, the type being determined by your Commander/Manager and;
3. Be subject to disciplinary action."
On 28 September 2021, the applicant made an application for an exemption from the requirement to be vaccinated against COVID-19 in the form of a Godfrey Report.
On 6 September 2021, the applicant was informed that his application had been rejected. On 22 November 2021, the applicant was served with a show cause notice pursuant to s 181D(3)(a) of the Police Act and then he provided his response to the show cause notice on 20 January 2022.
In approaching an application under s 181D, the Commission is required, by s 181F(1) of the Act, to take the following approach:
1. Consider the Commissioner's reasons for the decision to remove the applicant from the Force.
2. Consider the case presented by the applicant as to why the removal is harsh, unreasonable or unjust; and
3. Consider the case presented by the Commissioner in answer to the applicant's case.
Sub-section 181F(2) of the Act places the burden of proof on the applicant to establish that the removal was harsh, unreasonable or unjust.
The onus can, in some cases, be satisfied by the applicant casting sufficient doubt on the Police Commissioner's reasoning process. In that respect I refer to the Commissioner of Police, New South Wales Police Force and Zisopoulos [2020] NSWCA 236; 299 IR 314 at para 84.
The Commission is also required, under sub-section 181F(3) to take into account the applicant's interest, as well as the public interest.
The Order provides that the grounds relied on by the respondent to issue it are as follows:
I am satisfied that there are reasonable grounds to conclude that you have deliberately chosen not to comply with the direction of former Commissioner Fuller, APM, dated 7 September 2021 and my direction, issued on 25 September 2021.
In particular, it appears that you have failed to receive one or both doses of a COVID-19 vaccine within the specified timeframe and/or failed to provide evidence of your vaccination status.
In the circumstances, I find that your conduct was contrary to the Police Act 1990, the Police Regulations 2015, the Work Health and Safety Act and the New South Wales Police Force Code of Conduct and Ethics.
The Order then sets out the particulars of the contravention of each of the instruments I have just referred to.
Now I have considered both the cases presented by the applicant and the respondent and I will turn to each of those grounds as advanced by the applicant.
The applicant's first ground is that that the direction needed to be both lawful and reasonable and on both accounts, it was not.
With respect to that ground, the respondent submitted that the direction only needed to be lawful, by reference to s 6 of the Police Act1990 and in cases such as Enever v R (1906) 3 CLR 969.
I have previously considered this issue in the case of Welch v Commissioner of Police [2023] NSWIRComm 1002 at paragraph [38].
I accept the applicant's case that the direction must be both lawful and reasonable. In short, that reason is premised on the basis that the Commissioner relied on contraventions of both s 28 of the Work Health and Safety Act 2011 (NSW) and point 5 of the Code of Conduct. Both allege a breach of a lawful and reasonable direction.
If I turn to the specific grounds, firstly I will deal with the grounds presented to the applicant, which is advanced that the direction was unlawful.
The first of those is that it was argued by the applicant that the Commissioner of Police has no power to mandate the vaccination. The applicant relied on the case of New South Wales v Gemma Fahy [2007] HCA 20 and also that vaccination is not part of the duties of police, by reference to section under the Police Act. In Welch, I considered and rejected that argument, adopting the full bench of the Queensland Industrial Relations in Brassell-Dellow & Ors v State of Queensland (Queensland Police Force) & Ors [2021] QIRC 356.
In particular, in Welch I reached the following conclusions at [47]-[48]:
47 The Full Bench in Brassell-Dellow found that the Commissioner did have such a power. In reaching this conclusion, they considered the provisions of the Police Service Administration Act 1990 (QLD) ("QSA Act") which provided the Commissioner powers under s 4.9 of the QS Act to issue directions to ensure the efficient and proper functioning of the police service.
48 The power provided to the respondent under the Act and Regulation is very similar to that of the Queensland Commissioner of Police and the reasoning of the Full Bench in Brassell-Dellow is one which I adopt and accordingly the applicant's submission that the Direction is not one which is unlawful because it is not part of the applicant's duties is rejected.
Accordingly, I reject the first ground advanced by the applicant.
Secondly, it was argued by the applicant that the direction given by the then Assistant Commissioner Webb, in the 7 September 2021 video and the reminder message of 25 September 2021 is unlawful. The basis advanced by the applicant, is there was no delegation of the Commissioner's powers to the Assistant Commissioner to give such a direction.
Firstly, if there was a requirement for the Commissioner to provide such a delegation, there is no evidence before the Commission that it has not occurred. The applicant in this matter bears the onus at all times and the failure to adduce evidence to support that proposition means that it must be rejected.
Secondly, there is no basis provided for why the Assistant Commissioner, let alone any other member, above the rank of Constable, needs to be delegated any authority for each direction that they give to a member of the Force below them. I note that it is a hierarchical organisation and, given the above, I reject the second ground advanced by the applicant that the direction was unlawful.
The next ground advanced by the applicant as to why the direction was unlawful was because it constituted a contravention of the consultation provisions of the Work Health and Safety Act. Now, I have already dealt with this issue in the decision of Welch at paragraphs [61]-[64] as follows:
61 In Stewart Tween v Qantas Airways [2022] FWC 1594, Deputy President Easton of the Fair Work Commission considered this issue in the context of the introduction of Qantas' mandatory vaccination policy and reached the following conclusion:
[91] By contrast, the consultation provisions in the WHS Act impose obligations on an employer to do certain things, but they do not prevent the employer from doing anything. If Qantas has contravened s.47 of the WHS Act, it has done so by omission - by failing to do something that the WHS requires it to do.
[92] Understood in this way, the direction given by Qantas when it published its Policy, was not conduct in contravention of the WHS Act or otherwise illegal or unlawful.
62 I agree with the reasoning of the Deputy President in Tween and on this basis, I do not consider that the Direction upon its' announcement on 7 September 2022 was unlawful even if there had been a contravention of the consultation provisions of the WHS Act.
63 In any event, the evidence discloses that there had been consultation with at least the consultative committee as requested by the PANSW prior to the mandated time for the first vaccination under the Direction and some weeks prior to the reminder sent to the applicant to comply on 7 October 2021.
64 I reject the applicant's submission that the Direction was unreasonable and unlawful on the basis of lack of consultation. I do so on the basis of the information concerning COVID-19 and vaccines provided by the respondent to members of the NSWPF prior to 7 September 2021, the approach taken by the respondent with regards to consultation following the PANSW request of 8 September 2021 as well as the support of the PANSW for the Direction
There is no basis advanced in this matter that I should differ from Tween and Welch and accordingly I reject that the direction was unlawful for an alleged failure to consult in accordance with the provisions of the Work Health and Safety Act 2011 (NSW).
On an overall view of the issue of lawfulness of the direction, I note that there have been at least another six decisions of this Commission that have determined that the direction to become - the direction for mandatory vaccination of police officers issued on 7 September 2021 and 25 September 2021 is lawful. These include the case of Southcott v Commissioner of Police [2023] NSWIRComm 1075, Botros v Commissioner of Police [2023] NSWIRComm 1074, Matta v Commissioner of Police [2023] NSWIRComm 1059, Denshire v Commissioner of Police [2023] NSWIRComm 1048 and Townsend v Commissioner of Police [2023] NSWIRComm 1020. I find overall that the direction given to the applicant was lawful.
Now if I turn to the various grounds as to reasonableness, the first one was that the direction to be vaccinated was not a proportionate response to the ever-evolving changes to the virus. This ground is predicated on an assertion that:
1. The vaccination at the time stops the spread;
2. There were no other methods adopted by the respondent to remove or reduce infection; and
3. It ignored the risk of the vaccine to individuals.
It is clear that the purpose of the mandate was not to simply stop transmission. It was expressed in the reasoning provided in the 7 September 2021 direction and in other places, that the purpose of mandate was to reduce transmission, not stop transmission.
As to the other forms of control for COVID-19, the evidence of Mr Driver was quite clear that there were a number of other controls in place at the time which included the use of face masks, the use of face shields, the use of hand sanitizer, the use of gowns and social distancing.
As to the risks, the ATAGI guidelines set out above stated that the risk of the adverse side effects of the COVID-19 vaccine far outweighed the protection it provided to individuals. I reject these grounds for those reasons and that the application also has failed to present a case which supports this ground.
The next one is procedural fairness. There is a number of sub-grounds under procedural fairness and I will deal with each in turn. The first is that there was no criteria provided for the provision of a general exemption if no medical contraindication was provided. The applicant gave evidence that he put everything into the response on 28 September 2021, that he wanted to put forward to the respondent.
Secondly, the second ground was there was no response to all the issues raised by the applicant in his 28 September 2021 request for exemption.
Now the response of 6 October 2021 of the respondent is objective evidence that clearly shows that the respondent had considered the contents of the applicant's response of 28 September 2021 and there is no evidence that the applicant has brought before the Commission to prove otherwise.
The third ground was that there was no response to the applicant's letter of 12 October 2021 requesting various documents. Firstly, there was no compulsion on the respondent to provide those documents to the applicant and secondly, the evidence of the applicant was that up until that point in time, any other documents that he had received were self-serving and were documents which in effect, that he would not have taken account of.
The next ground - of procedural fairness is, procedural fairness as in matters of removal from the Police Force under s 181D of the Police Act are governed by s 181D of the Act and this process has been followed. For the above reasons, this ground is rejected.
I turn on to the next ground advanced by the applicant, which was the direction was not breached. This ground is based on the submission that the 7 September 2021 direction from the Commissioner simply required that in circumstances where a member of the Force was not vaccinated, that they were not to perform duties. This ignores the video direction by the then Assistant Commissioner Webb, of 7 September 2021 and also her direction of 25 September 2021. Also, the applicant's own evidence was that by some time in October 2021, he knew he was required to be vaccinated or he would face possible removal. That ground is rejected.
I turn to what I understand to be the next ground of unreasonableness which is the direction to become vaccinated is coercive in that the applicant was unable to give informed consent. The applicant has a clear choice. It was either to be vaccinated or face removal. He was not forced to take the COVID-19 vaccine and he made a clear and conscious decision not to do so. In those circumstances, I reject that ground.
The final ground advanced was that the removal was harsh, when one takes into account the length of service, the applicant's otherwise impeccable record and set out in the written submissions, but unsupported by evidence of the financial impact it would have upon the applicant.
In Welch at paragraphs [74] and [75] I determined that the removal of the applicant from the Force for failing to abide by the COVID-19 directions, is harsh is beyond doubt, however, the removal was as a result of the applicant's deliberate failure to abide by a direction of the respondent. It would be expected that members of the New South Wales Police Force would abide by such directions, particularly so in relation to matters concerning issues and safety. I apply the same reasoning in this matter.
In balancing the various aspects of the applicant's removal, it was justified and outweighed the harshness upon which it visited upon the applicant.
I have also considered the applicant's interests and that of the public interest and find that the applicant has not met his onus and I have decided to dismiss the application and accordingly I make the following order:
The application be dismissed.
[2]
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Decision last updated: 25 August 2023